AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia
Deciding how to address the concern requires a skilled investigator who can assess the situation, bal - ance procedural fairness, and maintain the integrity of the investigation. Depending on the nature of the concerns raised, the interview may resume once the concerns have been addressed or may be rescheduled. Interview - ees should never be pressured to continue while dis - tressed or unwell. If an interviewee refuses to resume their participa - tion without reasonable basis, the investigator should clearly explain any expectations or duty to co-operate and outline the potential consequences of refusal. If the refusal persists, the employer may: • consider any available measures to lawfully compel the interviewee’s participation; and/or • proceed with the investigation based on available evidence. Where an investigation involves a potential crime, the interviewee may be able to invoke the privilege against self-incrimination. In this case, it is generally recommended that the investigator sus - pend the interview and seek further direction from the employer. The privilege against self-incrimination can be complex in workplace investigations; as such, the employer may need to seek legal advice accordingly. 3.9 Minutes For reasons set out at 3.10 Recording , it is generally preferable to record interviews, where it is lawful and with the interviewee’s consent. However, taking minutes may be preferable or required where: • given the circumstances of the matter, recording may inhibit candid responses or increase the for - mality of the interview and stress for interviewees; and • the interviewee does not consent to being record - ed.
If the interview is not being recorded, the investiga - tor should prepare a written record of the interview, which summarises the matters discussed during the interview. The investigator should inform the interviewee that notes will be taken and a record prepared. A note- taker may attend so that the investigator can focus on the interview. It is best practice to provide the record of the inter - view to the interviewee promptly after the interview to confirm its accuracy. Any changes made by the interviewee should be noted. 3.10 Recording Recording is the standard and preferred practice in workplace investigations, for the following reasons: • it provides the most accurate record; • it avoids the risk of disputes about what was said; • it saves time, allowing the investigator to focus on listening, observing and adapting questions rather than taking detailed notes; and • when determining disputed facts, exact wording may be crucial. However, interviews should only be recorded lawfully and with the interviewee’s consent. Although producing a transcript is usually discretion - ary, transcripts assist investigators by making it easier to review evidence, assess credibility, and explain the rationale for findings without replaying recorded inter - views. Whether a transcript is provided to the interviewee is usually governed by policy, legal advice (for example, if it is necessary to maintain privilege) or the circum - stances of the matter. Whether the interviewee consents to the investigator’s recording or not, the investigator should also seek confirmation from the interviewee that they are not recording and will not record the interview. Unauthor - ised recordings can breach confidentiality, create legal risks, and undermine the integrity of the investigation process.
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